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Things you should and shouldn’t do when armed with a camera against the police.

April 8, 2012

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Last week the City of Boston agreed to pay Simon Glik $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his 2007 felony arrest for videotaping police roughing up a suspect. Prior to the settlement, the First Circuit Court of Appeals unanimously ruled that Glik had a “constitutionally protected right to videotape police carrying out their duties in public.” The Boston Police Department now explicitly instructs its officers not to arrest citizens openly recording them in public.

Slowly but surely the courts are recognizing that recording on-duty police is a protected First Amendment activity. But in the meantime, police around the country continue to intimidate and arrest citizens for doing just that. So if you’re an aspiring cop watcher you must be uniquely prepared to deal with hostile cops.

If you choose to record the police you can reduce the risk of terrible legal consequences and video loss by understanding your state’s laws and carefully adhering to the following rules.

Rule #1: Know the Law (Wherever You Are)

Conceived at a time when pocket-sized recording devices were available only to James Bond types, most eavesdropping laws were originally intended to protect people against snoops, spies, and peeping Toms. Now with this technology in the hands of average citizens, police and prosecutors are abusing these outdated laws to punish citizens merely attempting to document on-duty police.

The law in 38 states plainly allows citizens to record police, as long as you don’t physically interfere with their work. Police might still unfairly harass you, detain you, or confiscate your camera. They might even arrest you for some catchall misdemeanor such as obstruction of justice or disorderly conduct. But you will not be charged for illegally recording police.

Twelve states—California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington—require the consent of all parties for you to record a conversation.

However, all but 2 of these states—Massachusetts and Illinois—have an “expectation of privacy provision” to their all-party laws that courts have ruled does not apply to on-duty police (or anyone in public). In other words, it’s technically legal in those 48 states to openly record on-duty police.

Rule #2 Don’t Secretly Record Police

In most states it’s almost always illegal to record a conversation in which you’re not a party and don’t have consent to record. Massachusetts is the only state to uphold a conviction for recording on-duty police, but that conviction was for a secret recording where the defendant failed to inform police he was recording. (As in the Glik case, Massachusetts courts have ruled that openly recording police is legal, but secretly recording them isn’t.)

Fortunately, judges and juries are soundly rejecting these laws. Illinois, the state with the most notorious anti-recording laws in the land, expressly forbids you from recording on-duty police. Early last month an Illinois judge declared that law unconstitutional, ruling in favor of Chris Drew, a Chicago artist charged with felony eavesdropping for secretly recording his own arrest. Last August a jury acquitted Tiawanda Moore of secretly recording two Chicago Police Internal Affairs investigators who encouraged her to drop a sexual harassment complaint against another officer. (A juror described the case to a reporter as “a waste of time.”) In September, an Illinois state judge dropped felony charges against Michael Allison. After running afoul of local zoning ordinances, he faced up to 75 years in prison for secretly recording police and attempting to tape his own trial.

The lesson for you is this: If you want to limit your legal exposure and present a strong legal case, record police openly if possible. But if you videotape on-duty police from a distance, such an announcement might not be possible or appropriate unless police approach you.

Rule #3: Respond to “Shit Cops Say”

When it comes to police encounters, you don’t get to choose whom you’re dealing with. You might get Officer Friendly, or you might get Officer Psycho. You’ll likely get officers between these extremes. But when you “watch the watchmen,” you must be ready to think on your feet.

In most circumstances, officers will not immediately bull rush you for filming them. But if they aren’t properly trained, they might feel like their authority is being challenged. And all too often police are simply ignorant of the law. Part of your task will be to convince them that you’re not a threat while also standing your ground.

“What are you doing?”

Police aren’t celebrities, so they’re not always used to being photographed in public. So even if you’re recording at a safe distance, they might approach and ask what you are doing. Avoid saying things like “I’m recording you to make sure you’re doing your job right” or “I don’t trust you.”

Instead, say something like “Officer, I’m not interfering. I’m asserting my First Amendment rights. You’re being documented and recorded offsite.”

Saying this while remaining calm and cool will likely put police on their best behavior. They might follow up by asking, “Who do you work for?” You may, for example, tell them you’re an independent filmmaker or a citizen journalist with a popular website/blog/YouTube show. Whatever you say, don’t lie—but don’t let police trick youinto thinking that the First Amendment only applies to mainstream media journalists. It doesn’t.

But how can you tell if an officer asking for ID has reasonable suspicion? Police need reasonable suspicion to detain you, so one way to tell if they have reasonable suspicion is to determine if you’re free to go. You can do this by saying “Officer, are you detaining me, or am I free to go?”

If the officer says you’re free to go or you’re not being detained, it’s your choice whether to stay or go. But if you’re detained, you might say something like, “I’m not required to show you ID, but my name is [your full name].” It’s up to you if you want to provide your address and date of birth if asked for it, but I’d stop short of giving them your Social Security number.

“Please stop recording me. It’s against the law.”

Rarely is it advisable to educate officers about the law. But in a tense recording situation where the law is clearly on your side, it might help your case to politely present your knowledge of state law.

For example, if an insecure cop tries to tell you that you’re violating his civil liberties, you might respond by saying “Officer, with all due respect, state law only requires permission from one party in a conversation. I don’t need your permission to record so long as I’m not interfering with your work.”

If you live in one of the 12 all party record states, you might say something like “Officer, I’m familiar with the law, but the courts have ruled that it doesn’t apply to recording on-duty police.”

If you’re approaching the scene of an investigation or an accident, police will likely order you to move back. Depending on the circumstances, you might become involved in an intense negotiation to determine the “appropriate” distance you need to stand back to avoid “interfering” with their work.

If you feel you’re already standing at a reasonable distance, you may say something like, “Officer, I have a right to be here. I’m filming for documentation purposes and not interfering with your work.” It’s then up to you to decide how far back you’re willing to stand to avoid arrest.

How not to become a statistic in our nation’s enormous, expensive war on marijuana.

April 9, 2012 |

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Each year, close to a million Americans are arrested for possessing marijuana, and many millions more are targeted and searched by police on suspicion of being a marijuana user. It’s an incredible waste of limited law enforcement resources, and the experience of being harassed, arrested, and slapped with a criminal record isn’t exactly getting rave reviews from anyone either. Heck, even cops are getting sick of this idiocy.

I’ve spent several years teaching the public how to deal with police. I’ve heard more than my share of horror stories from people who froze up when confronted by the cops and soon found themselves in the back of a squad car. When that happens, chances are it wasn’t because they hurt someone, but rather, because they possessed a small amount of marijuana.

Now that half the nation is in favor of legalizing marijuana, there is hope that we’ll soon see a day when none of us are placed in handcuffs for having a little pot in our pockets. But until then, those who use marijuana –- whether to treat an illness, or simply as part of a healthy lifestyle –- should have a plan prepared just in case they find themselves in the wrong place at the wrong time.

The following tips are designed to help responsible adults avoid becoming statistics in our nation’s enormous, expensive and embarrassing war on marijuana.

1. Don’t Consent to Searches

This is a pretty straightforward concept, but a lot of people get hung up on worrying how the officer will react. Don’t. Just be cool and keep in mind that agreeing to a search will automatically lead to your arrest if you’re in possession of marijuana. Refusing will often prevent the search, but even it doesn’t, you’ll have a better chance of winning the case once you get to court.

2. Don’t Let Them Into Your House

If you enjoy marijuana, then you probably don’t want police officers coming inside your house. Unfortunately, cops are quite good at convincing you to let them in. They might make it sound like you don’t have a choice, or simply try to convince you they’re not looking to get anyone in trouble. Whatever they say, your answer should stay the same: No. Unless they have a search warrant, they can’t come in without your permission. Your best move is to politely explain that you’re not letting anyone in without a warrant.

3. Ask if You’re Free to Go

The longer your police encounter lasts, the greater the risk of something going wrong. If you refuse a search, officers will often say, “okay, wait here,” or they might even threaten to “call in the dogs.” What they won’t tell you is that they may not actually have any legal authority to make you stay. Police need evidence (reasonable suspicion) to justify detaining you, and refusing a search doesn’t count.

If you don’t feel like hanging out with the cops, ask if you’re free to go. If they say “yes,” leave immediately. If they say “no,” then you’re being detained and they will need to prove in court that they had a legal reason to detain you. Even if they search you and find marijuana, the fact that you asked to leave before the search will improve your chances in court, because any evidence found during an illegal detention is not admissible. The legal concepts here get a bit complicated, but just remember that after you refuse a search you should also ask if you can leave.

4. Don’t Do Dumb Stuff in Public

When the temptation to put fun before common sense takes over, the consequences can be quick and vicious. Knowing your rights can increase your odds of avoiding trouble, but if officers actually observe you committing a crime, the only tip I can give you is to call a good lawyer. If police see, smell, or hear evidence of criminal activity, that’s all the grounds they need to search and arrest you.

Remember that good herb reeks, literally spilling a cloud of probable cause in every direction. Lighting up in cars, parks, dorms and other exposed areas is just asking for trouble. Some regions are more lenient than others, but don’t push your luck, and don’t assume it’s okay just because you see others doing it. I’ve seen people get popped for pot in Berkeley of all places, so remember there are no drug-war-free zones in America yet. Be cool, and watch your back.

5. Don’t Snitch on Yourself

It’s tempting to think that honesty will win you some points with police. Heck, they’ll even promise to cut you a break in exchange for a straight answer. But coming clean is a mistake you’ll regret seconds later when they order you to put your hands behind your back. Most people don’t think pot is a big deal, so it’s easy for the cops to convince you they don’t care about it either. But it’s their job to bust you for pot, and they’re allowed to lie if necessary to trick you into cooperating. If they didn’t care, they wouldn’t ask.

If police are asking you incriminating questions, just politely tell them you choose to remain silent until you’ve spoken with a lawyer.

This is the most helpful advice I can give for protecting yourself from the tricks police use to bust millions of Americans for marijuana. But remember that knowing your rights and watching your back will only get you so far. Escaping unscathed from a scary police encounter also requires controlling your emotions and remaining calm and cool.

Maintaining a relaxed attitude is the key to pulling off tactics such as refusing searches, asking if you’re free to go, and declining to answer incriminating questions. Even if you do everything right, there’s still a chance you’ll end up in court fighting for your freedom, but your odds of winning will be far greater if you’ve calmly asserted your rights throughout the encounter.

I’d like to hear any strategies I might have missed. What’s your favorite tip for preventing a pot bust?

Practical Lawful Rebellion: Travelling
Police stop me while I exercise my god given right to travel upon the highways without hindrance, let or levy in any manner I see fit using my privately owned automobile

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